Abstract
In Pakistan, the Qanun-e-Shahadat Order 1984 deals with the issue of establishing filiation (nasab). It lays down a minimum and maximum period of gestation. However, there is no specific legislation regarding acknowledgement (iqrar), proof (bayyina), or the use of scientific methods such as DNA testing for determining the filiation of a child. The law also does not make a clear distinction between a valid and an irregular marriage. In this chapter it is argued that the courts in Pakistan have played an important role in establishing the filiation of a child and have adopted a more progressive approach to save the mother and the child from the stigma of illegitimacy. In the absence of specific legislation, the courts in Pakistan have recognized that an irregular marriage featuring sexual intercourse has the semblance of marriage such as to constitute legal proof establishing filiation. In 2010, consequent to the 18th Constitutional Amendment, legislative and administrative competence as well as financial authority on child rights issues has been devolved to the provincial legislative assemblies. As a result, in the province of Punjab laws such as the Child Protection and Welfare Act 2010 (CPWA 2010); the Punjab Destitute and Neglected Children Act 2004 (PDNCA 2004); and the Employment of Children Act 1991 (ECA 1991) have been enacted to provide protection to orphaned children, abandoned children or foundlings (laqit), and street children. Besides these pieces of legislation, issues relating to the custody and guardianship (vilayat) of children are covered by the Guardians and Wards Act 1890 (GWA 1890), federal-level legislation enacted and implemented throughout Pakistan. Although adoption in its strict Western sense is not allowed in Pakistan, the GWA 1890 makes provision for an individual to obtain legal guardianship of a child.
Ayesha Shahid is Senior Lecturer in Law at Coventry University, United Kingdom.
Isfandyar Ali Khan is currently Senior Partner of S&K Partnership, a law and policy consulting firm in Peshawar, Pakistan.
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Notes
- 1.
Articles 37(b) and (e) of the Constitution of the Islamic Republic of Pakistan.
- 2.
The federal government can therefore now legislate on child-related issues only in relation to federal territories and those areas not forming part of a province. However, under Article 142 of the Constitution, legislative competence in relation to criminal law, procedure, and evidence still lies concurrently with the federal Parliament and provincial assemblies. Legislation affecting the child and child rights in these areas, therefore, can be and still is made through federal law.
- 3.
In 2010, KP promulgated the Child Protection and Welfare Act 2010 (CPWA 2010), which provides mechanisms at local and provincial levels for the welfare and protection of children at risk. It is based on the principle of the best interests of the child. In 2011, KP also promulgated the KP Borstal Institutions Act 2011 (BIA 2011), under which separate detention places will be established for juvenile convicts for their basic education and their mental, moral and psychological development. The province of Sindh has promulgated the Sindh Child Protection Authority Act (SCPAA) 2011, through which an authority has been constituted which will monitor and ensure implementation of the child-protection-related provisions under the Convention in the province. The law seeks to establish district level child-protection institutions. In 2011, the Remand Home Rules were also announced by the government of Sindh. The Remand Home is a place of temporary custody for child inmates where they are provided with care. In 2013, the Sindh Assembly passed the Sindh Right of Children to Free and Compulsory Education Act 2013. Also in the same year, the province of Balouchistan promulgated the Balouchistan Compulsory and Free Education Ordinance 2013.
- 4.
The Child Marriage Restraint Act 1929 (CMRA) was a norm-setting legal document as the framers of the Act, bearing in mind prevailing societal norms, did not invalidate child marriage. However, under the Act the father or guardian may be punished for contracting their children into such marriages. In 2009 a private member bill to amend the CMRA was tabled in the National Assembly, the Child Marriage Restraint (Amendment) Bill 2009. It seeks to ‘remove the gender disparity in age’ of marriage of males and females, among other provisions, and set eighteen years as the minimum age of marriage for both. It has also proposed to raise the punishment for violations from one month to two years and the fine from one thousand to one hundred thousand rupees. Once the age of marriage for females is raised to eighteen years under the CMR (Amendment) Bill, amendments will be required in the option of puberty provision in the Dissolution of Muslim Marriages Act 1939 so as to provide effective relief to the victims of under-age marriages.
- 5.
The second piece of legislation that Pakistan inherited from pre-partition India was the Shariat Application Act 1937. The Shariat Application Act laid down that in Muslim family matters the rule of decision would be Muslim personal law. A substantial portion of personal law, therefore, remained un-codified and subject to interpretation by the courts. After the creation of Pakistan, the first legislative attempt made by the Punjab Legislative Assembly, which passed the New West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948), enlarged the scope of personal law to questions relating to succession, including succession to agricultural land (whereas the previous Act applied only to intestate succession). However, these changes were not welcomed in all parts of the country as men were still not willing to give women their share in property. As a result, to deprive women of their inheritance rights, amendments were made to the same Act in the Province of Sindh, and the following words were deleted from sec 2 of the Shariat Application Act: ‘save questions relating to agricultural land and other than charitable institutions and charitable and religious endowments’.
- 6.
This Act sets out the framework for the court’s consideration of custody disputes. The objectives of the Guardians and Wards Act 1890 are to promote the interests of children to make sure that the child will not suffer any discrimination or disadvantage because of the marital status of his or her parents.
- 7.
However, the Majority Act 1875 laid down an exception to the rule in section 2(a), which states that its provisions will not affect ‘the capacity of any person to act in the following matters (namely), marriage, dower, divorce and adoption’ under their personal law.
- 8.
Section 112 of the Evidence Act 1872 dealt with the issue of the legitimacy of the child, and it provided that a child born during a valid marriage or within 280 days after dissolution of a marriage would be legitimate, except where it was proved that the husband and the wife had no access to each other. Section 112 of the Evidence Act 1872 created a presumption of legitimacy applicable to the offspring of all married couples in India irrespective of their personal law. It laid down that a child would be deemed to be legitimate if it was born either (1) ‘during the continuance of a valid marriage’ between its parents or (2) ‘within 280 days after its dissolution, the mother remaining unmarried.’
- 9.
Sabreen 2013, p 25.
- 10.
Qanun-e-Shahadat Order 1984 section 128: (1) The fact that any person was born during the continuance of a valid marriage between his mother and any man and not earlier, that the expiration of six lunar months from the date of the marriage or within two years after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate child of that man, unless – (a) the husband had refused, or refuses, to own the child; or (b) the child was born after the expiration of six lunar months from the date on which the woman had accepted that the period of iddat had come to an end. (2) Nothing contained in clause (1) shall apply to a non-Muslim if it is inconsistent with his faith.
- 11.
Under section Sec 5(2) FCA, family courts have exclusive jurisdiction in the following matters: (a) Dissolution of marriage including Khula; (b) Dower; (c) Maintenance; (d) Restitution of conjugal rights; (e) Custody of children and the visitation rights of parents to meet them; (f) Jactitation of marriage; (g) Dowry; (h) Personal property and belongings of the wife; (i) Guardianship; (j) Offences specified in Part II of the Schedule, where one of the spouses is victim of an offence committed by the other.
- 12.
Proviso to s 12A of the FCA, as amended by the amending Ordinance 2002.
- 13.
[1996] CLC 94.
- 14.
Munir 2006.
- 15.
PLD 1983 Federal Shariat Court 73, p 93.
- 16.
The previous section 20 stated that the government may invest any judge of a family court with powers of magistrate first class to make order for maintenance under section 488 of the Code of Criminal Procedure 1898.
- 17.
PLD 2010 Lahore 422.
- 18.
PLD 1975 Supreme Court 674.
- 19.
PLD 2011 Lahore 423.
- 20.
PLD 2011 Lahore 424.
- 21.
10 All. 1880 289, 339.
- 22.
48 All. 1926 625.
- 23.
10 Lah. 1929 470, 114 I.C. 495.
- 24.
Saksena 1972, p 135.
- 25.
Mahmood 1972.
- 26.
As cited in Fyzee 2005, p 182.
- 27.
PLD 1962 (West Pakistan) Lahore 531.
- 28.
The brief facts of the case are that in the year 1953, Abdul Ghani and others, appellants in the case, had filed a suit in the court of Senior Civil Judge Lyallpur to seek a declaration that they were the owners of the land in dispute, as Mst. Taleh Bibi, who had been entitled to it on the death of Allah Baksh, had relinquished her claim in their favour. They alleged that Mst. Taleh had filed a suit for the recovery of rent against them and, therefore, they were compelled to file a suit to establish their title. Their main ground of challenge was that Mst. Taleh Bibi was born within six months of the date of marriage of her mother, Mst. Aishan Bibi, with Allah Bakhsh, and that she was therefore not the legitimate daughter of the latter. The court, among other issues, determined the issue of legitimacy of Mst. Taleh Bibi and stated that she is to be presumed the legitimate daughter of Allah Bakhsh.
- 29.
PLD 1962 (West Pakistan) Lahore 531.
- 30.
Sabreen 2013, p 28.
- 31.
PLD 1963 Lahore 141.
- 32.
PLD 2015 Supreme Court 327.
- 33.
PLD 2010 Peshawar 10.
- 34.
Cheema 2016, p 6.
- 35.
AIR 1916 Privy Council 27.
- 36.
See, for example, Ghulam Muhammad v. Muhammad Hussain, PLD 1978 Lahore 478, where the Lahore High Court held that where there is continuous cohabitation by the alleged parents and the father acknowledges the child, legitimacy of the child is established.
- 37.
PLD 1958 Karachi 420.
- 38.
PLD 1980 Supreme Court 228.
- 39.
PLD 1967 BJ 1.
- 40.
MLD 2005 Lahore 364.
- 41.
Sections 146–149 of Majmooa-e-Qawaneen-e-Islam edited by Dr. Tanzeel-ur-Rehman as cited in Mohammad Arshad v Sughran Bibi, PLD 2008 Lahore 302.
- 42.
PLD 2010 Lahore 422.
- 43.
PLD 2016 Lahore 242.
- 44.
Pakistan Economic Survey 2010–2011, Economic Adviser’s Wing, Finance Division, Government of Pakistan, Islamabad.
- 45.
In Gilgit-Baltistan such children are called ‘Nalbu’ (illegitimate children) and are thrown into a water stream (Nullah) to meet their fate of death. One of those water streams in Skardu in the Northern area of Gilgit-Baltistan is known as ‘Nalbu’ (meaning the water stream of illegitimate children), labelled after the way it is utilized, that is to get rid of illegitimate children.
- 46.
Ali 2007, p 156.
- 47.
Section 488 Cr.PC states: (1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, … a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, at such monthly rate, not exceeding four hundred rupees in the whole, as such Magistrate thinks fit and to pay the same to such person as the Magistrate from time to time directs. (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.
- 48.
The Qur’an in Sura al-Fatir, verse 17, lays down the principle: ‘No bearer of burdens can bear the burden of another,’ which means that an illegitimate child in Islam bears no stigma for the sin of one or both parents.
- 49.
For further details see Ahmed 2015.
- 50.
PLD 2015 Lahore 4524; Criminal appeal No. 2066 of 2012.
- 51.
Pursuant to section 375 (v) of the PPC, a man is said to commit rape when he has sexual intercourse with a woman when she is less than sixteen years of age. This qualifies as rape irrespective of whether the woman gave her consent to sexual intercourse.
- 52.
PLD 2015 Lahore 4524; Criminal appeal No. 2066 of 2012 (n 1) para [14].
- 53.
In Mokha v Zulfiqar PLJ 1978, Supreme Court 19 section 544(A) was declared as a ‘mandatory provision’ and the appellant was ordered to pay compensation to the legal heirs of the deceased since the trial court had failed to give any such directive. Similarly in Muhammad Shakeel v The State SCMR 2006 SC 1791, the fine imposed by the trial court was converted into compensation under section 544(A) that was awarded to the legal heirs of the deceased. In Muhammad Younis v The State 2002 SCMR 1308, compensation ordered for legal heirs was increased by the appellate court from Rs. 70,000 to Rs. 250,000 in the spirit of truly upholding the principles of equity and justice. In Shehzad Ahmed alias Mithu v The State, PCrLJ 2005 Federal Shariat Court 1316, the accused was asked to deposit compensation in the form of instalments as he did not have the means to pay all of it at once.
- 54.
PLD 2015 Lahore 4524; Criminal appeal No. 2066 of 2012 para [15].
- 55.
Criminal appeal No. 2066 of 2012 para [16].
- 56.
Ahmed 2015.
- 57.
As cited in Sabreen 2013, p 28.
- 58.
The Act defines a destitute or neglected child as a child who: (i) is found begging; or (ii) is found without having any home or settled place of abode and without any ostensible means of subsistence; or (iii) has a parent or guardian who is unfit or incapacitated to exercise control over the child; or (iv) lives in brothel or with a prostitute or frequently visits any place being used for the purpose of prostitution or is found to associate with any prostitute or any other person who leads an immoral or depraved life; or (v) is being or is likely to be abused or exploited for immoral or illegal purpose or unconscionable gain; or (vi) is beyond the parental control; or (vii) has lost his parents or one of the parents and has no adequate source of income; or (viii) is victim of an offence punishable under this Act or any other law for the time being in force and his parent or guardian is convicted or accused for the commission of such offence; or (ix) is at risk owing to disability or child labour; or (x) is imprisoned with the mother or is born in a jail; or (xi) is abandoned by the parents or guardian.
- 59.
For instance, where the person in charge of the custody of the child wilfully assaults, ill-treats, neglects or abandons the child or exposes the child to or causes or procures the child for assault, ill-treatment, neglect, or abandonment, or exposes the child to not having or negligently fails to provide adequate food, clothes, medical aid, or lodging, that person will be subject to imprisonment.
- 60.
Section 2(e) states that ‘child at risk’ means a child in need of protection who; (i) is at risk, including an orphan, child with disabilities, child of migrant workers, child working and or living on the street, child in conflict with the law and child living in extreme poverty; (ii) is found begging; or (iii) is found without having any home or settled place of abode or without any ostensible means of subsistence; or (iv) has a parent or guardian who is unfit or incapacitated to exercise control over the child; or (v) lives in a brothel or with a prostitute or frequently visits any place being used for the purpose of prostitution or is found to associate with any prostitute or any other person who leads an immoral or depraved life; or (vi) is being or is likely to be abused or exploited for immoral or illegal purposes or gain; or (vii) is beyond the parental control; or (viii) is imprisoned with the mother or born in jail; (ix) has lost his parents or one of the parents and has no adequate source of income; or (x) is victim of an offence punishable under this Act or any other law for the time being in force and his parent or guardian is convicted or accused for the commission of such offence; or (xi) is left abandoned by his parent or parents as the case may be, which will include a child born out of wedlock and left abandoned by his parent.
- 61.
Section 4(k) of the CPWA gives powers to the Child Protection Welfare Commission to ‘improve rules and procedures concerning compulsory birth registration and registration of children without birth documents including registration of an abandoned child with the State filling for his parentage’.
- 62.
Section 9(1) Every citizen in or out of Pakistan who has attained the age of eighteen years shall get himself and a parent or guardian of every citizen who has not attained that age shall, not later than one month after the birth of such citizen, get such citizen registered in accordance with the provisions of this Ordinance: Provided that the Authority may, on case-to-case basis, extend the period for registration of a citizen who has not attained the age of eighteen years: Provided further that all such citizens who stand validly registered under any law immediately before the commencement of this Ordinance shall be deemed to have been registered under this Ordinance and their registration shall, subject to sections 17, 18 and 30 remain valid till the expiry of two years from the commencement of this Ordinance, or such time as may be notified by the Federal Government, or till such time as such citizen is registered afresh as hereinafter provided, whichever is earlier.
- 63.
In KP, the Department of Local Government has been working with UNICEF and NADRA to take measures for birth registration. In this regard, birth registration is being done by a computerized local union data system. In Balouchistan, a steering committee has been set up for birth registration under the chairmanship of the Secretary Local Government to encourage birth registration. The Child Protection Wing of the Federally Administered Tribal Areas (FATA) Secretariat considers birth registration one of the most important issues; therefore, in association and with the support from the political administration of FATA, NADRA has introduced a program for birth registration of children in FATA regions. In 2010, the local government in Azad Jammu and Kashmir (AJK) in collaboration with NADRA launched a project on birth registration. The National Commission for Child Welfare and Development (NCCWD) has drafted the Child Protection Policy (CPP) for ICT, which includes provisions for the improvement of rules and procedures related to compulsory birth registration and registration of all children without birth documents. Additionally, the KP CPWA 2010 (section 4(k)) gives powers to the Child Protection Welfare Commission to ‘improve rules and procedures concerning compulsory birth registration and registration of children without birth documents including registration of an abandoned child with the State filling for his parentage’. In Sindh, KP, Balouchistan, Punjab, Islamabad, AJK and Gilgit-Baltistan, NADRA and local governments have in association with UNICEF organized consultations for the promotion of birth registration. UNICEF has developed a communication strategy and a nationwide campaign launched in 2012 to support the review of normative and regulatory provisions for cooperation between local governments and NADRA for birth registration, and an action plan is being applied in twenty-two districts.
- 64.
Ali and Khan 2017, p 320.
- 65.
Ali and Khan 2017, p 320.
- 66.
There are no official statistics available, but there is anecdotal evidence which shows various forms of informal adoptions.
- 67.
Section 7 Power of the Court to make order as to guardianship. (1) Where the Court is satisfied that it is for the welfare of a minor that order should be made: (a) appointing a guardian of his person or property, or both; or (b) declaring a person to be such a guardian, the Court may make an order accordingly. (2) An order under this Section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court. (3) Where a guardian has been appointed by will or other instrument, or appointed or declared by the Court, an order under this Section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.
- 68.
Section 8 Persons entitled to apply for order. An order shall not be made under the last foregoing Section except on the application of: (a) the person desirous of being, or claiming to be, the guardian of the minor; or (b) any relative or friend of the minor; or (c) the Collector of the District or other local area within which the minor ordinarily resides or in which he has property; or (d) the Collector having authority with respect to the class to which the minor belongs.
- 69.
Sections 7, 8, 9, and 10 Guardians and Wards Act 1890.
- 70.
Section 17 Guardians and Wards Act 1890.
- 71.
PLD 1965 Supreme Court 665.
- 72.
PLD 2015 Lahore 336.
- 73.
Other grounds include contumacious disregard of any of the GWA’s provisions or of any court orders; conviction of an offence implying a defect of character, having an interest adverse to the faithful performance of his duties, ceasing to reside within the local limits of the court’s jurisdiction and bankruptcy or insolvency in the case of a guardian of property.
- 74.
PLD 2002 Lahore 283.
- 75.
PLD 2002 Lahore 285.
- 76.
A fiduciary relation means that a person is in a position of trust, or occupies a position of power and confidence with respect to another, such that this person was obliged by various rules of law to act solely in the interest of the other, whose rights he had to protect.
- 77.
PLD 2015 Lahore 336.
- 78.
PLD 2015 Lahore 337.
- 79.
IAC 2016.
- 80.
SMC No. 12/2010.
- 81.
Gilgit-Baltistan, formerly known as the Northern Areas, is the northernmost administrative territory in Pakistan. According to the UNSC Resolution of 1947, the territory is part of the disputed Kashmir region. In 2009, it was granted limited autonomy and renamed to Gilgit-Baltistan via the Self-Governance Order signed by Pakistan’s president Asif Ali Zardari, which also aimed to empower the people of Gilgit-Baltistan. The order granted self-rule to the people of Gilgit-Baltistan, by creating an elected Gilgit-Baltistan legislative assembly and a Gilgit-Baltistan council. Gilgit-Baltistan thus gained a de facto province-like status without constitutionally becoming a part of Pakistan. Currently, Gilgit-Baltistan is neither a province nor a state. It has a semi-provincial status. However, real power rests with the governor and not with the chief minister or the elected assembly. The Pakistani government has rejected Gilgit-Baltistani calls for integration with Pakistan on the grounds that it would jeopardize its demands that the whole Kashmir issue be resolved according to UN resolutions.
- 82.
Dr. Shahid Iqbal v Public at Large and Another Respondent C.P.L.A. No. 10 of 2013.
- 83.
Dr. Shahid Iqbal v Public at Large and Another Respondent C.P.L.A. No. 10 of 2013.
- 84.
All alternative care institutions are established in accordance with laws, rules, and regulations and are regularly monitored by the relevant departments and CSOs. Monitoring teams highlight issues of governance and the quality of facilities for redressal. In KP, under the CPWA, there has been improvement in monitoring and coordination. Between October 2009 and November 2012, a total of 335 child protection committees were formed in eight districts to monitor and respond to cases of protection. They have also held regular awareness raising and coordination meetings with the line departments at the district level. By November 2012, a total of thirty-six district coordination meetings (DCMs) had been conducted in the Peshawar, Mardan, Swabi, Buner, Kohat, Charsadda, and Abbottabad districts.
- 85.
The Punjab Social Welfare Department has established model institutions, like Negehban and Chaman, to provide institutional care to the marginalized sections of society. In the reporting period, these institutions have provided services to 13,021 children and families.
- 86.
Kalanauri (n.d.).
- 87.
Kalanauri (n.d.), p 5.
- 88.
List of Issues, Seventy-Second Session, Item four of the provisional agenda.
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Shahid, A., Khan, I.A. (2019). Pakistan. In: Yassari, N., Möller, LM., Najm, MC. (eds) Filiation and the Protection of Parentless Children. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-311-5_10
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